BILL ANALYSIS �
AB 1795
Page 1
Date of Hearing: May 7, 2014
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 1795 (Alejo) - As Introduced: February 18, 2014
SUBJECT : Cities: city council: vacancy.
SUMMARY : Allows a resigning city council member to cast a vote
on the appointment of his or her successor. Specifically, this
bill :
1)Allows, if the city council of a city that elects city council
members by or from districts elects to fill a vacancy on the
city council as a result of a city council member resigning
from office by appointment, the resigning city council member
to cast a vote on the appointment
if the resignation will go into effect upon the appointment of a
successor.
2)Provides that the office of city council member becomes vacant
upon the delivery of a letter of resignation by the resigning
council member to the city clerk.
EXISTING LAW :
1)Requires a city council, within 60 days of a vacancy in an
elective office, to fill that vacancy by appointment or call a
special election to fill the vacancy, as specified. A person
appointed or elected to fill a vacancy holds office for the
unexpired term of the former incumbent.
2)Provides that an office becomes vacant upon the resignation of
the person from office before the expiration of the term,
among other things.
3)Provides, pursuant to the California Constitution
(Constitution), for the formation of charter cities.
4)Provides, pursuant to the Constitution, that it shall be
competent in any city charter to provide that the city
governed thereunder may make and enforce all ordinances and
regulations in respect to municipal affairs, subject only to
restrictions and limitations provided in their several
charters and in respect to other matters they shall be subject
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to general laws. City charters adopted pursuant to the
Constitution shall supersede any existing charter, and with
respect to municipal affairs shall supersede all laws
inconsistent therewith.
5)Provides, pursuant to the Constitution, that it shall be
competent in all city charters to provide for a number of
items of governance, including conduct of city elections.
FISCAL EFFECT : None
COMMENTS :
1)Purpose of this bill . This bill allows a resigning city
council member of a city that elects city council members by
or from districts to cast a vote on the appointment of his or
her successor, if the city council elects to fill the vacancy
by appointment rather than by a special election. This bill
is author-sponsored.
2)Author's statement . According to the author, "The California
Government Code specifies what occurrences constitute a
vacancy in public office. Among the list of occurrences is
resignation. Additionally, in the event that a vacancy occurs
on a city council, the Government Code specifies that the city
council may choose to call a special election or fill the
vacancy by appointment. However, special elections are often
uneconomical and current statute does not specify whether or
not the resigning council member may cast a vote in the
appointment of his or her successor.
"In the case of Martinez et al. v. City of Watsonville, CV
169473, Sup. Ct. Santa Cruz (2011), it was decided that public
policy favors ensuring a city council district's
representation by allowing the resigning councilmember to vote
in the appointment of the district's next representative.
While the language of current statute remains silent on this
issue, general law cities that elect their councilmembers
through district elections would benefit greatly from a
clarification.
"California has 482 cities - with 361 of those being general
law cities. Moreover, an increasing number of those general
law cities are moving towards district elections. This bill
clarifies that a resigning councilmember may represent his or
her district by casting a vote on the appointment of a
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successor. This bill will not apply to cities whose charter
addresses this issue."
3)Background . Under existing law, when a vacancy occurs on a
city council, the council must fill that vacancy by
appointment or call a special election to fill the vacancy
within 60 days. The law is silent on whether the resigning
councilmember may cast a vote on his or her successor if the
vacancy is filled via appointment. This provision applies to
general law cities and to charter cities that do not have
applicable provisions in their charters.
4)Charter cities and general law cities . The California
Constitution gives cities the power to become charter cities.
Of California's 482 cities, 121 are charter cities. The
state's 361 general law cities are subject to the general laws
passed by the Legislature. Under the Constitution, the
ordinances of charter cities supersede state law with respect
to "municipal affairs," while state law prevails with respect
to matters of "statewide concern." This is often referred to
as the home rule doctrine. The courts decide whether a matter
falls within the home rule authority of charter cities.
While the Constitution does not explicitly define "municipal
affair," it does outline four categories that are presumed to
be municipal affairs, stating that "it shall be competent in
all city charters to provide, in addition to those provisions
allowable by the Constitution, and by the laws of the State
for: (1) the constitution, regulation, and government of the
city police force; (2) subgovernment in all or part of a city;
(3) conduct of city elections; and, (4) plenary authority is
hereby granted, subject only to the restrictions of this
article, to provide therein or by amendment thereto, the
manner in which, the method by which, the times at which, and
the terms for which the several municipal officers and
employees whose compensation is paid by the city shall be
elected or appointed, and for their removal, and for their
compensation, and for the number of deputies, clerks and other
employees that each shall have, and for the compensation,
method of appointment, qualifications, tenure of office and
removal of such deputies, clerks and other employees."
The provisions of this bill would apply to all general law
cities, and to any charter city that does not stipulate in its
charter whether a resigning council member may cast a vote on
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the council's appointment of a successor.
5)Watsonville dispute . According to an article in the Santa
Cruz Sentinel dated February 28, 2014, "In 2010,
then-Councilman (of Watsonville) Emilio Martinez argued
(then-Mayor) Luis Alejo couldn't vote for his replacement
because his seat wouldn't be vacant until he stepped down from
office. With his wife Kathleen Morgan-Martinez and Corralitos
pilot Ken Adelman, Martinez filed a lawsuit to prevent Alejo
from casting a ballot.
"Alejo countered that a vacancy occurred when a council member
announced his or her intention to quit, and that the
resignation could be made effective upon the appointment of a
replacement. If he couldn't vote, Alejo said, his
constituents in District 2 would be disenfranchised as their
next representative was chosen by six council members elected
from other districts. The city, championing Alejo's position,
prevailed in superior court, though the matter is pending in a
state appeals court.
"The issue continued to rankle, however, and a citizens group
collected enough signatures to force the City Council to put a
measure on the June 3 ballot that would prevent such a vote by
a member of the council in the future. The Let the People
Vote measure defines a vacancy as 'empty,' and bans the
appointment of replacements, requiring instead an election in
the affected district."
6)Pending litigation . In Martinez et al. v. City of
Watsonville, the Santa Cruz County Superior Court found that,
"(P)ublic policy favors allowing the residents of a resigning
City Councilmember's district to have representation in the
decision over who will be appointed to represent them as their
Councilmember on the City Council. For these reasons, it is
lawful for a resigning City Councilmember to participate in
the vote on the appointment of the successor who will fill
that vacancy." This case is pending before the Sixth District
Court of Appeal.
7)Watsonville Ballot Measure . Ballot Initiative Measure H,
which will be presented to the voters of the City of
Watsonville on June 3, proposes to amend Watsonville's charter
to require a vacant Council seat to be filled only by voters
at either a general or a special election rather than by
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council election, within 90 days after the vacancy occurs.
8)Arguments in support . The Pajaro Valley Cesar Chavez
Democratic Club, in support, states, "This important bill
protects voting rights and ensures voters will not be
disenfranchised in cases where a councilmember resigns. This
bill will simply clarify state law by stating that resigning
councilmembers can vote on choosing their successor when the
resignation is effective upon the vote of an appointment.
"This ensures that the people of the particular council
district will continue to have a voice in that important
decision. Our city faced this very situation in 2010 when a
resigning District 2 councilmember stated in his resignation
letter that the effective time of his resignation was when the
vote of an appointed councilmember took place.
"The Santa Cruz County Superior Court reviewed this case and
vindicated the City of Watsonville ruling that the resigning
councilmember could indeed vote on his successor so that his
constituents would have a voice and not be disenfranchised.
Otherwise, it would have only been the council members of all
other 6 council districts voting on who would represent
District 2, leaving the people of that district with no say in
that critical decision.
"This bill makes good sense and good voting rights policy. It
would also provide clarity to the courts in future similar
cases, reduce litigation and protects our voting rights."
9)Arguments in opposition . The Watsonville Pilots Association,
in opposition, states that
AB 1795 was introduced "with the intent of establishing in law
(a) ruling (by the Santa Cruz Superior Court) that a resigning
member of a city council can stay in office long enough to
choose his replacement. However, this lawsuit is currently
pending a decision at an appeals court?Since this decision is
still pending, the Legislature should let the Appeals Court
rule before interfering in a pending court case?
"(In addition, a related ballot measure is) on the June 3,
2014, ballot?AB 1795 could pass through the Assembly before
the June election, thus sending a signal that could suppress
the vote of the people?This timing?raises questions about who
should decide a pending issue."
AB 1795
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"AB 1795 would (also) produce unintended consequences, such as
possible additional lawsuits as a result of a council's poor
policy decisions instigated by behind the scenes special
interests?Detrimental unintended consequences of
representatives appointed by cliques is deterioration of
infrastructure caused by biased council priority
decisions?Council representation determined on a vote by the
people results in better and more efficient infrastructure
maintenance?The key question is: who does the appointee
represent, the appointing councilmember's agenda or the voters
and taxpayers of the district?"
REGISTERED SUPPORT / OPPOSITION :
Support
League of United Latin American Citizens
Pajaro Valley Cesar Chavez Democratic Club
Opposition
Watsonville Pilots Association
Individual letters (6)
Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958